Rand Paul and FBI Director Add Some Drama as Phone-Record Collection is Set to Wind Down

There were two dramatic flourishes on Wednesday as the Senate approached the nearly-inevitable decision to end the bulk collection of American phone records exposed by NSA whistleblower Edward Snowden two years ago.

Sen. Rand Paul, R-Ky., commandeered the Senate floor for ten and a half hours in a move to call attention to his criticisms of government surveillance programs — and his campaign for the Republican presidential nomination. “There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer,” Paul said. “That time is now.”

Meanwhile, the Department of Justice and FBI Director James Comey issued warnings about what will happen if the Senate doesn’t take some sort of action, and simply lets three provisions of the Patriot Act expire on June 1. The DOJ said no new foreign intelligence investigations would be able to use the roving wiretap or “lone-wolf” surveillance authorities after May 31, and that it would start winding down the bulk collection program on Friday.

The roving wiretap provision gives authorities more leeway to surveil targets without a specific warrant. The “lone wolf” provision authorizes terrorist investigations of individuals without having to show connections to a terrorist organization. Comey called both of them “important.” (Civil libertarians argue that there are other pre-Patriot Act means to achieve those ends that are less subject to abuse.)

For one, this fight is not over a genuine repeal of the surveillance state, as exposed by Snowden. It’s over one program that — while arguably the most shocking of the Snowden revelations because it involved mass surveillance aimed at ordinary Americans — is quite clearly doomed.

There is no legislative path for it to continue. The House overwhelmingly voted in favor of the USA Freedom Act last week, which ends the bulk phone records program while retaining the other Patriot Act authorities. President Obama, the DOJ, and even the NSA have said they’re fine with that. Obama’s Privacy and Civil Liberties board concluded over a year ago that the program was illegal and should end. And a federal appellate panel actually ruled it illegal earlier this month.

Senate Majority Leader Mitch McConnell is putting up the appearance of a fight to get the program extended temporarily. But on Tuesday, he acceded to letting the Senate vote on the USA Freedom Act, as approved by the House.

“At this point, a vote against the reform bill they oppose is a vote for the sunset they want to avoid,” explained Kevin Bankston, policy director at the Open Technology Institute. That “has been the reform strategy all along — leverage the expiration of Patriot Section 215 in order to get the best reform possible and kill the bulk records program in exchange for 215’s renewal.”

The Freedom Act would impose new restrictions on the NSA for the first time in four decades — while codifying a new way for the government to search through phone records in a way that had no precedent before 9/11. It would also do nothing to limit NSA programs officially targeted at foreigners that “incidentally” collect vast amounts of American communications. It would not limit the agency’s mass surveillance of non-American communications at all.

So while the hardliners are providing a media narrative that makes it look like a big victory for reformers, by fighting until the last minute, it’s not.

As for Rand Paul, he had vowed to filibuster a straight extension of the provisions, but presumably saw the chance to do that evaporating. He nevertheless launched a pseudo-filibuster Wednesday afternoon, although unlike a real filibuster he was going to have to cede the floor Thursday — and he didn’t even make it that far.

The move did, of course, call some due attention to the core underlying issues. Paul excoriated Congress for leaving the issue until the last minute, despite knowing for three years that the provisions were going to sunset. That “happens frequently around here. ‘There’s not enough time. Hurry up, hurry up, there’s not enough time,'” he said.

He reminded listeners of the importance of the warrant process, with its built-in checks and balances, noting that “We gave it up so quickly. We gave it up so quickly on the heels of 9/11 in the fear.”

But it wasn’t entirely clear what his demands were, or what, if anything, he was able to delay. One email from his campaign said he had pledged to “filibuster” until he got votes on amendments that would end bulk data collection and revise the national security letter process. But he didn’t.

Procedurally, the most he may have done is push Senate proceedings into the weekend. But politically, it was a different story. His move was widely seen as succesful attempt to seize the national stage and differentiate himself from the other Republican candidates for president.